A Reply to Monica Hakimi

By
Amos Guiora

To the naked eye, Professor Monica Hakimi and I agree: Targeted killing is lawful provided it is subject to criteria and standards. Perhaps we reach this conclusion from different perspectives and distinct analysis, but the conclusion is similar. In other words, targeted killing is legal; the question is under what conditions. A close reading of Professor Hakimi’s thoughtful and well-written response to my initial essay suggests concern with my analysis of imminence; in other words, how do we determine whether the threat posed is sufficiently imminent to determine that the potential target is, indeed, a legitimate target. Professor Hakimi is spot-on in highlighting this issue. Similarly, she is correct in suggesting that my essay proposes a rearticulation of international law to account for a new operational model. There is, frankly, discomfort in proposing new models; ad hoc solutions are inherently dangerous because their limits are unclear. In that vein, as history continuously suggests, unlimited executive power in the face of threats raises deeply important questions and concerns. That said, to apply traditional models to new threats is similarly problematic; the challenge is implementing proactive operational measures subject to rigorous checks and balances with narrow definitions of critical terms. As much discussed in scholarly literature on war and international law—and as Professor Hakimi correctly notes— the term imminence is elusive, problematic, and subject to wide interpretation. Imminence, in the targeted killing paradigm, suggests that unless the nation-state decisively engages a particular individual deemed to pose a direct threat, then innocent civilians will be harmed. For example, to successfully conduct a suicide bombing requires a doer (the bomber), a sender (responsible for the operation in all parameters), a logistician (responsible for all operational logistics), and a financier (responsible for financing the attack, whether directly or indirectly). All four actors are essential, individually and collectively. The proactive self-defense model at the core of targeted killing requires determining when each actor is a legitimate target predicated on an imminence analysis. Too broad a definition violates international law and morality in armed conflict standards; too narrow a definition unnecessarily endangers innocent civilians to whom the nation-state owes a duty to protect. Based on international law principles of military necessity and proportionality, along with the requirement to minimize collateral damage and to pursue alternatives, the four actors are legitimate targets at distinct times. The doer is a legitimate target when about to commit a suicide bombing; the sender is a legitimate target 24/7 regardless of specific actions at the moment provided collateral damage is minimized; the logistician is a legitimate target when involved in planning an attack, with the understanding that continued involvement poses a greater threat to national security than the doer of a specific attack; the financier, while largely an unresolved dilemma, is a legitimate target more akin to the sender than to the logistician and immeasurably more so than the doer. After all, financiers are to terrorism what intelligence information is to counterterrorism. There is no terrorism without financiers and there is no counterterrorism without intelligence information. Where, then, does this leave us with respect to the questions Professor Hakimi posed? While recommending new paradigms is inevitably a risky proposition, the core question is whether the nation-state has the requisite tools to effectively engage in aggressive self-defense against an amorphous target. Professor Hakimi and I agree that an overbroad definition of a legitimate target is a dangerous road to travel. Similarly, we agree that standardless targeted killing models not predicated on well-defined criteria pose an extraordinary danger to the rule of law and morality standards. Nevertheless, while debate is important—particularly given the dangers inherent to excessive state power—it is important to cut to the chase. To that end, the working model proposed above for defining both the legitimate target categories and when those targets may be legitimately engaged suggests a way forward. While inevitably subject to criticism and concern, it reflects a balancing approach required by international law in a conflict that I have previously referred to as “mission impossible.” After all, identifying a legitimate target in the traditional war paradigm posed minimal challenges to operational decision makers; defining a legitimate target in the state/non-state paradigm poses extraordinary challenges. Targeted killing is the most aggressive form of self-defense; in the present paradigm, its morality, legality, and effectiveness demand narrow definitions of legitimate target strictly applied. That is the model I have proposed. How criteria-based decision making is applied determines whether the nation-state conducts itself in accordance with international law.